Citation Nr: 1330985 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-12 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right upper extremity (dominant). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Senior Counsel INTRODUCTION The Veteran had active service from December 1976 to December 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Providence, Rhode Island, which granted service connection for neuropathy of the right forearm (dominant), and assigned a noncompensable rating, effective from May 2009. A March 2010 rating decision increased the rating for this disorder to 10 percent, effective from January 26, 2009. The Veteran has continued his appeal. FINDING OF FACT Throughout the entire period on appeal, there are objective neurological abnormalities of the right upper extremity that are productive of moderate but not severe incomplete or complete paralysis of either the right median or right ulnar nerve. CONCLUSION OF LAW Throughout the period on appeal, the criteria for a 30 percent, but not greater, rating for moderate incomplete paralysis of either the right median or right ulnar nerve have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.71a, 4.124a, Diagnostic Codes 8515, 8516 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided a pre-adjudication VCAA notice by a letter dated in May 2009. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. Where, as here, service connection has been granted and the initial disability ratings have been assigned, the claims of service connection have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claims of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision rating the disabilities does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claims for initial higher ratings for radiculopathy of the right upper extremity following the initial grant of service connection. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded VA examinations in June 2009 and July 2011. As the examination reports are based on review of the Veteran's history and describe the disabilities in sufficient detail so that the Board's review is a fully informed one, the examination reports are considered adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Although the Veteran's representative has recently stated that the Board should remand for another examination in the event it is unable to grant an increased rating based on the age of the last examination, the Board does not find that this is a sufficient reason, on its own, to remand the claim. More specifically, while the Board concedes that it has now been over two years since this examination, it has been held that the age of the examination does not by itself render the examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). If it is thorough and there is no evidence or statement from the Veteran indicating that the Veteran's disorder has actually worsened since the last examination, remand for another examination is not warranted. Here, all of the Veteran's statements, complaints, and medical evidence asserted as the basis for an increased rating are dated prior to or at the time of the July 2011 examination. Consequently, the Board finds that further examination as to this claim is currently not required. As the Veteran has also not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. II. Analysis A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). As shown more fully below, the Veteran's radiculopathy has been related by competent medical evidence to the C6-7 distribution level based on diagnostic and clinical findings, which the Board finds to be consistent with the involvement of the median or ulnar nerve (6th cervical). Under Diagnostic Code 8515, the criterion for a 10 percent rating for impairment of the major median nerve is mild incomplete paralysis. The criterion for a 30 percent rating is moderate incomplete paralysis. A 50 percent rating is provided for severe incomplete paralysis and a 70 percent rating is provided for complete paralysis that is demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of the wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124(a), Diagnostic Code 8515. Under Diagnostic Code 8516, the criterion for a 10 percent evaluation for impairment of the ulnar nerve is mild incomplete paralysis. The criterion for a 20 percent rating is moderate incomplete paralysis of the right major ulnar nerve. The criterion for a 30 percent rating is moderate incomplete paralysis. A 40 percent rating is provided for severe incomplete paralysis and a 60 percent rating is provided for complete paralysis that is demonstrated by the "griffin claw" deformity, due to flexor contraction of right and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of right and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; and flexion of wrist weakened. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Private magnetic resonance imaging (MRI) of the cervical spine in January 2009 was interpreted to reveal multiple levels of degenerative change, the most significant of which was at C3-4, where there was a disc bulge with posterior osteophytosis that compressed the anterior cord. There was also neuralforaminal narrowing at C3-4 on the right, C4-5 on the right, C5-6 on the right, and bilaterally, at C6-7. The most severe level of neural foraminal narrowing was at C5-6, on the right. In a private medical report, dated in January 2009, Dr. Saris noted that the January 2009 MRI was a relatively unremarkable study, and that in light of the Veteran's predominantly right arm complaints, he looked carefully on his right side and found that his symptoms suggested a C6 nerve entrapment. Additional private records from February 2009 reflect the Veteran's receipt of epidural injections at the C6-7 space. A private medical report from Dr. Doberstein, dated in March 2009, reflects his finding that the Veteran had decreased sensation to light touch in a C6 distribution on the right. His review of the January 2009 MRI revealed a right disc osteophyte complex at C5-6 causing some mild right-sided foraminal narrowing. A private medical report from Dr. Saris, dated in April 2009, reflects that the Veteran's radiculitis was largely gone, but that the Veteran still had a bit of weakness and tingling in the radial hand. On examination, the right C6 motor and sensory distributions were quite normal. VA examination in June 2009 revealed good strong grip in both hands, and that the Veteran had good strength to resistant flexion and extension of the shoulder and upper arm. Triceps reflex on the right was 2+, biceps was 2+, and radial reflex was 1+. MRIs that were reviewed at this time were not found to reveal herniated discs. It was also noted that the Veteran had received very limited benefit from Cortisone injections. He did, however, complain of continuing pain in the right arm with some numbness of the aspect of the lower arm. The Veteran did not use assistive devices. He was a scheduler on the computer at the Naval War College. The activities of daily living were not affected. There was no history of repeated pain on movement or flare-ups, and there had been no hospitalization for incapacitating episodes. The diagnoses were cervical disc disease with radiculopathy and neuropathy, as noted in the right forearm. In his March 2010 VA Form 9, the Veteran maintained that VA examination in June 2009 did not adequately consider the Veteran's daily pain in the right, finger, and thumb. Simple activities, such as tying shoe laces and carrying a bag of groceries were reportedly more difficult, and had a significant impact on his life. This pain had lasted almost fourteen months. Occasionally, he would also have a sharp pain between his shoulder blades that he related to his disc 5 and 6 situation. He felt that Dr. Doberstein stated it perfectly when he said there wasn't anything he could do for him surgically. He had constant pain in the forearm, between his hand and elbow. In his April 2010 notice of disagreement with the March 2010 rating that assigned a 10 percent rating for this disability, the Veteran asserted that his disability should be evaluated at least at the moderate level, noting that he experienced daily pain in the right thumb, right forefinger, part of the back of his right hand, and right forearm. VA peripheral nerves examination in July 2011 revealed that the examiner reviewed the Veteran's claims file in conjunction with his examination of the Veteran. The Veteran described persistent numbness in the first finger and to a lesser extent, numbness in the thumb. It was noted that the Veteran had undergone a number of imaging studies, including MRIs of the cervical spine. He had also been seen by an interventional pain specialist and neurosurgeons, including Dr. Kurt Doberstein and Dr. Steven Sarris. He also had cervical spine epidural injections which gave him marked benefit with radicular pain but did not result in any difference with respect to his numbness. The symptoms reportedly developed around January 2009. Surgery was not recommended by either neurosurgeon as the Veteran had no significant motor deficits and had relief of his pain with epidural shots. He was seen by Dr. Doberstein on March 29, 2009. Dr. Doberstein noted an MRI from January 2009, which showed a central disc protrusion at C3-4 with some abasement of the anterior CSF and C5-6 right disc osteophyte complex with right-sided neuroforaminal narrowing. There was no frank disc herniation or severe spinal stenosis. His impression was that the Veteran had a cervical radiculopathy that did not require surgery, and that the numbness and tingling was secondary to his radiculopathy. The Veteran then saw Dr. Sarris in April 2009 who felt that he had a right cervical radiculitis rather than true nerve compression. In this note, Dr. Sarris described that the pain was largely gone but still with some tingling in the radial aspect of the hand. He described normal motor distribution in the right C6 area. Physical examination revealed no appendicular ataxia and 5/5 strength in all myotomes of both hands and arms. There was no sensory deficit to pin or light touch. The Veteran had 2+ symmetrical reflexes bilaterally, and it was again noted that the Veteran worked in software programming and at a computer on his desk. The examiner concluded that it was as likely as not that the Veteran had mild, right cervical radiculopathy which was chronic. Encouragingly, it was noted that the Veteran had experienced improvement with his pain since receiving epidural injections. The Veteran had no weakness but he did have a residual deficit of numbness of the right first finger, and to a lesser extent, the thumb. This had been persistent and unchanging for at least two years. The examiner did not feel that this would limit him from performing most sedentary or physical type activities. If the Veteran needed to perform fine motor tasks with the first digit, there could be some impairment, however. As was noted previously, radiating pain or radiculopathy relating to the C6-7 distribution level is associated with impairment of the median nerve or ulnar nerve. Under Diagnostic Code 8515, the criterion for a 10 percent rating for the impairment of the median nerve is mild incomplete paralysis. The criterion for a 30 percent rating for the major median nerve is moderate incomplete paralysis. Under Diagnostic Code 8516, the criterion for a 10 percent rating for impairment of the ulnar nerve is mild incomplete paralysis. The criterion for a 30 percent rating for the major ulnar nerve is also moderate incomplete paralysis. In assessing the symptoms associated with the Veteran's right upper extremity radiculopathy, the record reflects that it has included various levels of pain, consistent complaints of numbness involving the forefinger and thumb of the right hand in addition to the backside of the hand and forearm, and interference with daily activities such as carrying groceries and tying shoe laces. Moreover, MRI studies have revealed findings at C6-7 that examiners have determined to be consistent with radiculopathy. In fact, on the basis of these and clinical findings of extreme pain, the Veteran underwent epidural injections at C6-7 with good results. Therefore, while the Veteran has experienced a significant decrease in his pain following the injections, in view of the fact that he has not been determined to be without pain, continues to experience constant numbness in the areas noted above, and there is objective evidence supporting his subjective complaints, the Board will give the Veteran the benefit of the doubt and find that his symptoms more nearly approximate moderate incomplete paralysis under either Diagnostic Code 8515 or 8516 during the entire time frame on appeal. The Board is unable to rate the same pain and numbness under both diagnostic codes as to do so would constitute pyramiding, which is prohibited under 38 C.F.R. § 4.14 (2013). Consequently, the Board finds that a 30 percent, but not greater, rating is warranted for this disorder. With respect to the issue of entitlement to even higher ratings for severe incomplete nerve paralysis or complete paralysis, the Board first notes that the Veteran's current complaints are mostly sensory in nature, and that as a result, he is at most entitled to a rating based on moderate impairment. Moreover, in examining the type of criteria considered for complete paralysis and whether any of these criteria are met on a partial or limited basis (not demonstrated to the level of complete paralysis but consistent with severe incomplete paralysis), none of these criteria is shown. More specifically, with respect to the median and ulnar nerves, neither the index finger nor the thumb have been shown to be hyperextended, limited in motion, or to exhibit atrophy. Therefore, the Board finds that the evidence of record is clearly against entitlement to an even higher rating under either Diagnostic Code 8515 or 8516. The Board has further considered whether an even higher rating is warranted based on extraschedular considerations under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for a service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Comparing the current disability levels and symptomatology to the Rating Schedule, the rating criteria encompass the neurological manifestations of the service-connected disabilities of the cervical segment of the spine. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. The assigned schedular ratings are therefore adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). The Veteran has also been employed throughout the period of the appeal, and the Veteran has not expressly raised and the record does not reasonably raise, a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER An initial evaluation of 30 percent, but not greater, for radiculopathy of the right upper extremity is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs